UK PARKING PATROL OFFICE LTD - COURT PROCEEDINGS

Fazzz

Thank you @Coupon-mad i have updated it. Are you happy with the rest of the draft?

Coupon-mad

Looks fine except it looks like you deleted the usual point #1 of the template?  Normally your facts go in as #2, 3, 4, etc.

Fazzz

This is the final one after taking into account the advice/critique. 

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that the Claimant (understood to have a bare licence as managers) has the standing to sue or capacity to form contracts in their own name at the location.

2.    It is admitted that the Defendant was the driver of the vehicle in question, but liability is denied. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. 

3.     The Defendant has parked in the staff car park on previous occasions when he has worked at the [       ]. There was no requirement to display a staff parking permit. Given the fact that this has been changed in the recent past, no prominent additional signs have been placed or clear notice has been given. As soon as you approach the car park, there is a relatively big sign saying, ‘Forum Staff Car Park Only’. This sign is misleading and contradicts the other signs in the car park. The IPC Code of Practice is very clear about any additional signs, ‘Signage which is neither an entrance sign or a sign displaying all the terms and conditions must not contradict the terms applicable to Motorists or be misleading’.  

4.    Given the fact that the rules/terms and conditions have been changed in the recent past. The Claimant failed to adhere to IPC Code of Practice in terms of any changes in its terms and conditions. The Code of Practice says:

‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charges’.

Any reasonable person who is not a regular visitor can be easily misled. Any other signs in the car park are very small and difficult to read and spot. As suggested in the ParkingEye Limited v Barry Beavis, the driver must be given adequate notice, the claimant failed to do so in this case.

5.    The signage failed the fairness tests established in Parking Eye v Beavis. Due to the imprecise wording and failure to adhere to the IPC code of practice, the driver did not form any contract with the Claimant and as a result, it invalidates all the charges. Following Pace v Lengyel, the parking required a permit and as the driver did not and could not have a permit, the contract in any case failed by the doctrine of impossibility. As many other judges have found with this type of signage, it means no contract could be in place and the driver would be a trespasser. The claimant did not argue trespass, therefore this claim bound to fail. Even if the claimant argued trespass, it would have still failed, because only the land occupier can sue for trespass, and even in those circumstances as established in ParkingEye v Beavis, only actual damages would have been recoverable, not fictional amounts.

6.    Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

7.    The Particulars of Claim set out an incoherent statement of the case and the quantum has been enhanced in excess of the sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. It is also the duty of the court to consider the fairness of the terms under s71 of the Consumer Rights Act 2015. The Defendant avers that the claimant has not complied with his duty for the terms and notices(signs) to be fair under s62 of the CRA 2015. The court’s attention is drawn to (but not limited to) parts 6, 10, 14 and 18 of the lists of terms that are likely to be unfair and the CMA Guidance. The Defendant invites the court to find this Claimant in breach. NB: This is different from the Unfair Terms in Consumer Contracts Regulations 1999, considered by the Supreme Court, which also requires the contract terms and notices to be fair.

8.     In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a global sum of £160 per alleged PCN. This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338. In the 2012 case, the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  The Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not (ref: para 419). Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs (ref: paragraphs 98,100, 193 and 198).

 

9.    Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double-recovery of the cost for sending out standard automated letters.  It is denied that the Claimants have occurred additional costs to produce these automated letters that the Beavis-case decision held, was a justification for the (already increased from the discount) parking charge sum of £85.  

10.  The Claimant cannot base its charges on the Beavis case and then add damages for automated letters; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court in Semark-Jullien case, where the Judge merely reset an almost undefended the case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above, in any event, it is worth noting that the leading Southampton case of Britannia v Crosby was not appealed either.  It is averred that District Judge Grand's rationale remains sound, as long as the court has sufficient facts to properly consider the CRA 2015, s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

11.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new statutory code of practice being prepared, given that the two Trade Bodies have failed to properly govern this industry.

 

The Parking Eye Ltd v Beavis [2015] UKSC 67 case is distinguished:

12.  Unlike, in this case, Parking Eye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification argued, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text (which is denied in this case).  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

13.  Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

14.  The Supreme Court held in that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

15.  The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law and would also be considered void pursuant to Sch2 of the CRA 2015.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed.

16.  Binding Court of Appeal authorities with cases involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge would include:

                                          i.    Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

                                         ii.    Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,

17.  The leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and in Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing the case, and not from the ratio.  To pre-empt that, Miss Vine in fact won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

18.   The Claimant is also put to the strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises the Claimant to issue parking charges and even if the claimant has the authority to do so, it is quite different from entering into a contract with the driver following the case of Pace Recovery and Storage Ltd v Zoltan Lengyel. The Defendant also dispute Claimant’s authority to enforce such charges by means of civil litigation in their own name rather when the Claimant merely has a bare licence to act as an agent ‘on behalf of’ the landowner.

 19.  In the matter of costs, the Defendant seeks:

a)    standard witness costs for attendance at Court, pursuant to CPR 27.14, and

b)    that any hearing is not vacated but continues as a cost hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant and will seek further costs pursuant to CPR 46.5.

20.  The Defendant invites the court to find that this exaggerated claim is without merit in its entirely, and to dismiss the claim. 

STATEMENT OF TRUTH

I believe that the facts stated in this Defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

SIGNATURE:                                                             DATE:

 

Coupon-mad

16.  Binding Court of Appeal authorities with cases involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge would include:
                                          i.    Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and
                                         ii.    Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,
17.  The leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and in Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing the case, and not from the ratio.  To pre-empt that, Miss Vine in fact won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

I'd say the above should be just one paragraph, not two, because otherwise it doesn't read properly.  Other than that, all good.

Fazzz

Thank you I appreciate the help available here from all members. 

Fazzz

Hi, i have received an email from UKPPO in response to my SAR request, they are asking for some form of ID to confirm my identity to deal with the request.  I remember reading a thread on this forum somewhere that I don't need to send a copy of ID but I can't find that thread now. 

Coupon-mad

V5C (logbook, if you still own the car) yes, and/or a utility bill to prove your address, yes.

Driving Licence or passport - absolute NO!

Fazzz

Thank you 

Le_Kirk

Fazzz said:

Hi, i have received an email from UKPPO in response to my SAR request, they are asking for some form of ID to confirm my identity to deal with the request.  I remember reading a thread on this forum somewhere that I don't need to send a copy of ID but I can't find that thread now. 

Seems like a delaying tactic.  Did you attach a scan of your V5C (it was in the instructions) when you submitted the original SAR?  If so, report them to the ICO and tell them you have done it.  Otherwise follow the advice given above by @Coupon-mad. 

Fazzz

Will do thank you @Le_Kirk